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Pacific Legal Found. v. Andrus

ELR Citation: 9 ELR 20413
Nos. No. 77-1054-C-Cv, 13 ERC 1266/(M.D. Tenn., 05/24/1979)

The court dismisses a suit seeking an injunction requiring defendants to prepare an environmental impact statement in conjunction with the listing of certain mollusks in the Duck River as endangered species. The listing could serve to prohibit continuation of the proposed Columbia Dam under §7 of the Endangered Species Act (ESA). Regarding the issue of standing, all plaintiffs, with the exception of the Pacific Legal Foundation (PLF), will suffer direct personal injury if the requested injunctive relief is denied and the dam project is not completed. PLF has no members residing in the area affected by the project, however, and thus has no standing. The court determines that there is a statutory conflict between the procedural mandates of the ESA and the requirements of the National Environmental Policy Act (NEPA). In view of this conflict, the court holds NEPA to be inapplicable to the listing of endangered species under the ESA. The court also notes that the 1978 amendment to the latter statute, which established an exemption procedure, has no application to actions, such as those in this case, that were taken prior to its enactment. Furthermore, the court points out, plaintiffs have not asserted that defendants have violated any provisions of the ESA.

Counsel for Plaintiffs
Lon P. McFarland
Mid-Tennessee Bank Bldg., Columbia TN 38401
(615) 388-3215

Donald C. Simpson
Pacific Legal Foundation,
1990 M St. NW, Washington DC 20036
(202) 466-2686

Counsel for Defendants
David C. Cannon Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2846

Hal Hardin, U.S. Attorney
879 U.S. Courthouse, Nashville TN 37203
(615) 251-5151